Aird & Berlis, LLP, Solicitors, of the Ontario Superior Court of Justice v. Levy

[Indexed as: Aird & Berlis LLP v. Levy]

75 O.R. (3d) 44

[2005] O.J. No. 1082

Docket: C42168

Court of Appeal for Ontario,

Catzman, Doherty and Feldman JJ.A.

March 24, 2005

Civil procedure -- Orders -- Final or interlocutory -- Charging order -- Order made on motion for charging order finally determines solicitor's rights to charging order -- Order made on motion for charging order is final order -- Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1). [page45 ]

A motion for a charging order under s. 34(1) of the Solicitors Act finally determines the solicitor's rights to the charging order and the question of the solicitor's entitlement is not revisited in the disposition of the principal proceeding in which the motion was brought. Therefore, as between the solicitor and client, the motion finally determines the solicitor's rights and, consequentially, the order is a final order.

APPEAL from an order of Snowie J. of the Ontario Court of Justice, dated June 24, 2004.

Cases referred to Taylor v. Taylor (2002), 2002 44981 (ON CA), 60 O.R. (3d) 138, [2002] O.J. No. 2313, 214 D.L.R. (4th) 676, 26 R.F.L. (5th) 208, 21 C.P.C. (5th) 205 (C.A.) Statutes referred to Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1)

Kenneth G. Hood, for appellant. Sanj Sood, for respondent.

Endorsement

[1] Endorsement BY THE COURT:-- This is an appeal from a charging order.

[2] At the opening of the hearing, the respondent sought to quash this appeal on the basis that the order appealed from is interlocutory and not final. The motion was for a charging order under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15. The section contemplates a motion rather than an originating proceeding. The motion can be brought in the context of ongoing litigation between the parties, one of whom is represented by the moving solicitor, or within another proceeding, such as an assessment of the solicitor's accounts, as in this case.

[3] The motion judge had to make determinations of fact and law regarding the satisfaction of the conditions in s. 34 before a charging order could be made. Those determinations are limited to the question of the solicitor's entitlement to a charging order and are not revisited in the disposition of the principal proceeding. Therefore, as between the solicitor and the client, the motion finally determines the solicitor's right to the charging order. Consequently, the order made is a final order. The motion to quash is therefore dismissed.

[4] On the merits of the appeal, the motion judge addressed each of the three conditions for a charging order under s. 34(1) of the Solicitors' Act and made findings of fact in respect of each. There is no basis to interfere with any of the findings. We specifically reject the submission that a charging order can only be made in respect of work done after a solicitor becomes solicitor of record in a proceeding that has been instituted. [page46]

[5] The motion judge considered the issue of whether the settlement funds were for support payments and properly distinguished this court's decision in Taylor v. Taylor (2002), 2002 44981 (ON CA), 60 O.R. (3d) 138, [2002] O.J. No. 2313 (C.A.) on the record before her. We are satisfied that the wording of s. 34(1) is sufficiently broad to encompass interest on a solicitor's accounts.

[6] Finally, the fact that the funds may have been taken out of the province by the time the charging order was made is not necessarily an impediment to the making of the charging order. Nor was it clear on the record that the funds had been removed from Ontario before the order was made.

[7] The appeal will be dismissed. The respondent is entitled to costs which, having regard to the divided success on the motion and on the appeal, we fix in the sum of $3,000.

Order accordingly.